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09/08/92 BERNARD GRAY v. RUBY L. WASHINGTON

September 8, 1992

BERNARD GRAY, APPELLANT
v.
RUBY L. WASHINGTON, ET AL, APPELLEES



Appeals from the Superior Court of the District of Columbia; (Hon. Gladys Kessler, Motions Judge)

Before Rogers, Chief Judge, Steadman and King, Associate Judges.

The opinion of the court was delivered by: King

KING, Associate Judge: Appellant, Bernard Gray, an attorney, appeals Rule 11 sanctions imposed against him for filing a civil complaint in the Superior Court. Super. Ct. Civ. R. 11. The sole issue presented is whether the motions Judge erred in ordering Rule 11 sanctions against appellant because he did not seek documentary evidence to support his clients' representations before filing a complaint seeking the imposition of a constructive trust on certain real property. We reverse.

I.

This appeal arises out of an adult sibling dispute over the Disposition of the family home. In December 1989, Mr. William Green and Ms. Rosetta Parkman, brother and sister, retained attorney Bernard Gray, appellant, to stop the imminent sale of the home in question. Mr. Green and Ms. Parkman had learned that their 99-year old mother, Mrs. Rosebud Green, the record owner, had placed the family residence on the market for sale. They believed that their sister, Ruby s. Washington ("Ms. Washington") had initiated the effort to sell the house.

Mr. Green and Ms. Parkman informed appellant that all of the siblings had made monetary contributions toward the purchase of the home: they made the down payment, contributed to the mortgage payments over the years, and contributed toward renovations and repairs. Each of the children at various times lived in the home. The mother, however, always retained legal title to the property.

Relying on these representations, appellant believed his clients had a strong case for the imposition of a constructive trust; a belief based on his personal experience with his own family home that had been owned by his mother. See Gray v. Gray, 412 A.2d 1208 (D.C. 1980). On December 26, 1989, he filed a complaint on behalf of Mr. Green and Ms. Parkman seeking a court-imposed constructive trust on the family property and a temporary restraining order ("TRO") preventing sale pendente lite. The defendants named in the action were Mrs. Rosebud Green and two of plaintiffs' sisters, Ms. Washington and Ms. Ileon Pope.

On December 27, 1989, one day after the complaint was filed, the Superior Court granted the request for a TRO and prohibited the sale of the home. On January 4, 1990, the TRO was extended pending trial on the merits. On February 15, 1990, a hearing on a motion for a permanent injunction was held before Judge Rufus G. King, III. Mr. Green and Ms. Parkman testified that during the 1940s they had brought their parents to Washington, D.C. from Alabama, and that they had paid for all the parents' expenses. After their parents arrived, all of the siblings played some role in the purchase of the family home by contributing to the down payment of the house, mortgage payments, and repairs.

Mrs. Rosebud Green, the mother, was also called to testify. However, she seemed to be unaware that the house was on the market for sale. Her testimony led the trial Judge to raise a question about her mental capacity, and he suggested that a guardian ad litem be appointed to determine whether she was capable of making a decision to sell the home.

At the close of the proceeding, Judge Rufus King granted defendants' motion to dismiss the request for a permanent injunction, basing his ruling on the lack of documentary support of plaintiffs' testimony and the fact that the circumstances surrounding the purchase of the property occurred forty to fifty years earlier. A counterclaim remained unresolved and the case subsequently was transferred to Judge Kessler.

Seven months after the dismissal of the request for a permanent injunction, the defendants filed a motion seeking Rule 11 sanctions against Mr. Green, Ms. Parkman, and their attorney, appellant, requesting payment of the defendants' legal expenses. A hearing on the sanctions motion was conducted on November 27, 1990, before Judge Kessler, who ordered appellant to pay $7,295.00 in attorney fees. This appeal followed. *fn1

Rule 11 requires, where a party is represented by an attorney, that the attorney must sign all papers. It further provides that:

the signature of an attorney or party constitutes a certificate by the signer that the signer has read the pleading, motion or other paper; that to the best of the signer's knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.

Rule 11 sanctions are not to be imposed simply because the allegations in the challenged pleading are found wanting. " signer's failure to make a reasonable factual inquiry must be a flagrant one before sanctions are warranted." U.S. Sprint Communications Co. v. Kaczmarek, 121 F.R.D. 414, 417 (D. Kan. 1988); See also Gaiardo v. Ethyl Corp., 835 F.2d 479, 483-84 (3d Cir. 1987); Morristown Daily Record, Inc. v. Graphic Communications Union, Local 8N, 832 F.2d 31, 32 n.1 (3d Cir. 1987); Levy v. City of New York, 726 F. Supp. 1446, 1456 (S.D.N.Y. 1989). "Rule 11 is violated only when it is 'patently clear that a claim has absolutely no chance of success.'" Oliveri v. Thompson, 803 F.2d 1265, 1275 (2d Cir. 1986) (citations ...


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